VYAS, J. ( 1 ) THIS petition challenges the proceedings before learned Judicial magistrate, First Class, Shamlaji in Criminal Case based on C. R. No. 48 of 1988 of Shamlaji Police Station that Asstt. Education Inspector of Office of district Education Officer, Himatnagar, Sabarkantha District seems to have written to the Police Inspector, Shamlaji Police Station that Sarvodaya Yuvak mandal of which the petitioner is the President, has started imparting education through Sri Saraswati Vidyalaya at Nava Bhavnath, Taluka Bhiloda, without registering the said school under the provisions of the Gujarat Secondary education Act, 1972 (for short, the Act ). According to the said letter which is dated 22-6-1988 on that day when the said Asstt. Education Inspector visited the school and enquired of one Virjibhai Kamjibhai Nirama, the Incharge of the above school, he was told that the school is functioning. According to the said letter, the police was informed that running a Secondary School without the necessary registration as required under Sec. 31 (1) of the Act by the said yuvak Mandal is in violation of provisions of Sec. 31 of the Act, and therefore, the Managers of the school are required to be prosecuted under Sec. 42 of the Act read with Regulation 2 (7) of the Gujarat Secondary Education Regulation by the District Education Officer, Sabarkantha, who had directed the said Asstt. Education Inspector to lodge a complaint, and therefore, in that letter the said asstt. Education Inspector had stated that he lodges a complaint accordingly. It seems that the police took it to be the First Information Report and started investigation and on 22-7-1988 the petitioner was arrested and on surety being furnished he was released at 5-15 p. m. The papers seems to have been forwarded to the Magistrate and a copy of the charge-sheet dated 5-10-1988 is annexed with the application. ( 2 ) MR. M. B. Gandhi, learned Counsel appearing for the petitioner argued that the provisions of Sec. 42 of the Act provided that any person who contravenes the provisions of Sec. 31 (1) of the Act, shall, on conviction be punished with fine which shall not be less than rupees one hundred and which may extend to rupees one thousand, and therefore, under the provisions of the Criminal Procedure code (for short the code) the said offence would be non-cognizable. He argued that, therefore, the enquiry by the police is prohibited under Sec. 155 (2) of the code. Section 155 of the Code reads as under :"155. (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such office* the such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable ease, notwithstanding that the other offences are non-cognizable. " ( 3 ) HE then argued that looking to the provisions of Sec. 190 of the Code, the police report at the end of investigation can only be taken cognizance of by the learned Magistrate under Sec. 190 (l) (b)of the Code, Section 190 reads thus :"190. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsec. (2) take cognizance of any offence - (a) upoa rsceiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-sec. (I) of such offences as are within his competence to inquire into or try. "mr. Gandhi read for the purpose also the definition of police report from sec. 2 (r) of the Code and submitted that unless and until the said report is brought under Sec. 173 (2), the same cannot be acted upon as police report. (I) of such offences as are within his competence to inquire into or try. "mr. Gandhi read for the purpose also the definition of police report from sec. 2 (r) of the Code and submitted that unless and until the said report is brought under Sec. 173 (2), the same cannot be acted upon as police report. ( 4 ) HE argued that by virtue of the prohibition under Sec, 155 (2), Police officer cannot investigate without the order of the Magistrate and according to Mr. Gandhi in this case, the police was not so ordered, and therefore, the investigation by the police is contrary to the said provisions, and therefore, the initiation of proceedings against the petitioner would be bad. He argued that this is supported by three judgments. He pointed out that in the case of labhshankar Keshavji and Am. v. State, reported in AIR 1955 Saurashtra 42, the conviction of the accused under Sec. 384 of the I. P. C. was set aside by quashing whole of the proceedings consequent upon the investigation by the police under Sec. 155 (2) of the Code. In that case, the whole of the proceedings seem to have culminated in the conviction of the accused basing upon an investigation carried out by the Police Officer without obtaining the orders of the Magistrate under Sec. 155 of the Code. It was held by the Saurashtra court (supra) that the report submitted to the Magistrate on Shri Jethvas (Police officer) investigation was not a report upon which he could validly take cognizance of the offence and all his proceedings must be quashed as without jurisdiction. Mr. Gandhi next submitted that similar is the view taken in the case of Abdul Halim and Anr. v. State of West Bengal, reported in AIR 1961 calcutta 257. In the Calcutta High Court also the proceedings based upon the police report seem to have been challenged. Calcutta High Court (supra) held that in its view the provisions of Sec. 155 (2) cannot be rendered nugatory by regarding police report in a non-cognizable case where there has been no previous order under sub-sec. (2) of Sec. 155 as a valid report under Sec. 190 (l) (b) of the Code. Mr. Calcutta High Court (supra) held that in its view the provisions of Sec. 155 (2) cannot be rendered nugatory by regarding police report in a non-cognizable case where there has been no previous order under sub-sec. (2) of Sec. 155 as a valid report under Sec. 190 (l) (b) of the Code. Mr. Gandhi next pointed out that another judgment reported in AIR 1964 Pandh 407, in the case of Om Parkash s/o Bua Dutta v. State, the Punjab High Court relying upon the case of Labhshanker Keshavji (supra) set aside the conviction and sentence of the accused therein. ( 5 ) LEARNED. A. P. P. Mr. S. R. Divetia, submitted that the two cases cited above, i. e. , 1955 Saurashtra High Court and 1964 Punjab High Court are after the trial, whereas in the present case, the trial has not begun and therefore, there is a vital difference between the two. He submitted that if at all there is an irregularity in commencing the proceedings in this case, since the petitioner has come at an earlier stage of the proceedings, this Court can ask the Magistrate to consider the so-called report of the police as a complaint under Sec. 190 (l) (a) of the Code. He argued that the said section does not require any particular person or form for filing the complaint before the Magistrate for his taking cognizance of any offence. For the purpose, he referred to the definition of complaint from Sec. 2 (d) with its explanation. The same reads thus :"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The same reads thus :"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation: A report made by a police officer in a case which discloses, after, investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant,"he argued that the report made by the police officer in a non-cognizable offence is not required to be considered as a police report as per the definition of Sec. 2 (r) of the Act, but the same has to be considered to be a complaint as defined in Sec. 2 (d) of the Act and the case thus would fall under Sec. 190 (l) (a) and the Magistrate can be directed to proceed accordingly. He cited for the purpose a judgment rendered in the case of H. N. Rishbud and Am. v. State of Delhi, reported in AIR 1955 SC 196 relying upon the following :"if, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt, that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled. "the Supreme Court then, has again relied on Privy Council judgment which will not be necessary to mention here. ( 6 ) TO this judgment of the Supreme Court (supra), Mr. M. B. Gandhi, learned Counsel appearing for the petitioner cited 1992 (1) Cri. LJ 527 (State of Haryana v. Ch. Bhajan Lal I in which the Supreme Court has cited a few cases in which the High Court, under Art. 226 of the Constitution of india or under Sec. 482 of the Code can exercise the powers to quash the proceedings. He pointed out that para 108 enumerating the list of myriad kinds of cases wherein such powers could be exercised. He pointed out that para 108 enumerating the list of myriad kinds of cases wherein such powers could be exercised. Item 4 of the list reads thus :"where, the allegations in the F. I. R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec. 155 (2) of the code. " ( 7 ) IN 1992 (1) Cri. LJ 527 the Supreme Court quoted the judgment of 1955 Supreme Court (supra) without any disapproval to the same. In fact in paras 125 and 131 of the Criminal Law Journal, the Supreme Court has cited the above judgment, particularly that "when a breach is brought to the notice at an earlier stage of the trial, the Court will have to consider the nature and extent of the violation and pass appropriate order for such reinvestigation as may be called for. 15 ( 8 ) TO my mind thus 1955 Supreme Court is not given a go-bye, by the later judgment but the same is in a sense approved as both the judgments travelling at different beats. ( 9 ) SO far as this case is concerned, it is at a very early stage at which breach of Sec. 155 (2), if at all, is brought to the notice of this Court, and therefore, this Court certainly can ask the Magistrate to proceed as if he has received complaint under Sec. 190 (l) (a) of the Code only and not upon a police report under Sec. 191 (b) of the Act, according to law. ( 10 ) IT is also pertinent to note that for the definition of the complaint as referred to in Sec. 190 (l) (a) of the Code, one has to read the definition of Sec. 2 (d) which very clearly states that a report made by a police officer in a case which discloses after investigation commission of non-cognizable offence which shall be deemed to be a complaint and the police officer by whom such report is made, shall be deemed to be the complainant. This would clearly mean that such a report taken by the police is not to be a police report under Sec. 190 (l) (b) but he has to take the same to be a complaint as aforesaid under Sec. 190 (l) (a) of the Code. ( 11 ) I agree with the submissions made by the learned A. P. P. Mr. S. R. Divetia, that this case would fall under Sec. 190 (l) (a) of the code and the report if any, filed by the police officer after investigation will be treated as a complaint and not as a police report. According to me the judgments of 1955 Saurashtra, 1964 Punjab and 1961 Calcutta (supra) do not have any application in this case as I am directing the learned magistrate to consider the case before him under Sec. 190 (l) (a) of the Code and proceed according to law. ( 12 ) IN that view of the matter, I see no merit in this application and the same is dismissed. Rule is discharged. Interim Relief is vacated. .